Former longtime NYT Supreme Court correspond, current biweekly Times columnist, and habitual woman-after-my-own-heart Linda Greenhouse, has a column today titled “Let’s Legislate From the Supreme Court Bench” about how very fond movement conservatives became a while ago of legislation from the bench.

She makes the point that legislation from the bench is an absolutely essential component of the Conservative Movement.

I’ve made that point, or tried to, roughly 879 times at AB since I began posting here in 2010. But she’s Linda Greenhouse, and I’m, well, nobody. But at least I’m in good company in recognizing how ridiculously underappreciated—how thoroughly unknown, actually—this critical fact is.

I don’t understand why some high-profile liberals are saying that the Supreme Court is becoming a liberal Court, although I guess that if you think the end-all-and-be-all of Supreme Court jurisprudence is culture-wars cases, then the two end-of-term culture-wars opinions that went liberal, and the gay marriage case last term, is all the proof you need.

In any event, it’s nonsense. And I’m thrilled that I’m not the only liberal who sees that.

ADDENDUM: Reader Sandi and I exchanged these comments in the Comments thread here this morning:

Sandi

February 19, 2016 9:03 am

One way Kristoff didn’t mention that amasses huge fortunes is our tax laws, as pertains to inheritance.

It’s beyond obscene that not only are families like the Scaifes and Kochs able to set up trusts to pass the loot to their kids, that, are structured so that after a few years of giving the proceeds of the trust to charity, the kids then get the whole enchilada with no inheritance or gift tax consequences.

The really brilliant bit is using that generated cash to set up 501(c)(3) and 501(c)(4)s to further your political agenda, much of which is to keep the tax laws bent in your direction……………
Power is great, but anonymous power really keeps your enemies on their toes. They never know where you’ll strike from next.

Me

February 19, 2016 9:57 am

Sandi, it absolutely dismays me that the news media and the Republican Establishment think Rubio could beat Clinton or Sanders. The two seminal parts of Rubio’s tax plan are to end the capital gains tax and end the estate tax.

The public, of course, doesn’t yet know this, and it does not occur to the media and Republican Establishment folks that once they learn of it Rubio couldn’t defeat a monkey in the general election.

Yet they all—the pundits of all ideological stripes—keep saying that Sanders’ current strength against the Republican candidates in polls pitting them against Sanders and against Clinton don’t mean much this early, yet the polls showing Rubio’s strength do. But the key thing that supposedly makes Sanders unelectable—that he’s a SOCIALIST—is actually the thing that virtually everyone who’s heard of him knows. Yet the key thing that actually would make Rubio unelectable—his tax plan—has yet to break through to most of the public. Literally; it’s extremely likely that almost no one knows of it.

I’ll add here that it is to Paul Krugman’s tremendous credit that he keeps making that point about Rubio.

I have known for the last five weeks—since January 27, to be exact—that the Supreme Court will uphold the Administration’s interpretation of the federal-subsidies provisions in the ACA when it issues its decision in the infamous King v. Burwell case whose argument date at the Court is Wednesday. I also have known since then that the opinion will be unanimous, or nearly so, and that Antonin Scalia is likely to write it but if not will join it.

I considered revealing this to AB readers earlier, but feared an F.B.I. inquiry into suspicions that I hacked into the computer system in Scalia’s chambers, so I hesitated. But it’s now or never—Scalia will make his position clear at the argument, and then I will have lost my one chance, ever, for a career as a Vegas oddsmaker—and I think I can persuade the F.B.I. that I received my information not illegally but instead from a report recounting extensive, pointed comments Scalia made in open court on January 21, in a case that is not about the ACA but is, like King, about the methods the Court uses to interpret lengthy, highly complex federal statutes with multiple interconnecting sections and subsections whose purpose is to establish a cohesive policy.

Actually, I had thought the most basic right in our democracy was the right of states to violate individuals’ constitutional rights as they chose, courtesy of the fundamental constitutional principle of states’ equal sovereignty. So my post and its title were intended as facetious. But then AB reader Alex Bollinger reminded me in a comment to my post that Antonin Scalia had written in his concurrence in Bush v. Gore that the Constitution contains no generic guarantee to the right to vote.

I mean, sure, the Fifteenth Amendment says:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

But those Reconstructionist types who drafted and ratified that Amendment hadn’t checked with James Madison before presuming that there was a right of citizens of the United States to vote. And, more important, they hadn’t checked with Roger Taney.

In any event, Scalia, by joining Roberts’ opinion in McCutcheon, now agrees that the Constitution indeed guarantees a right to vote. It does so in the First Amendment, which James Madison participated in drafting! And which Roger Taney probably approved of. (Whew!)

While that first sentence in McCutcheon doesn’t directly identify the First Amendment as the source of the right to participate in electing our political leaders, elsewhere in McCutcheon the First Amendment is expressly credited as guaranteeing that right.

I realized that this morning when I read Linda Greenhouse’s op-ed in today’s New York Times in which she pretty much sums up John Roberts along with McCutcheon. She writes:

It wasn’t until the Roberts court’s Citizens United decision in 2010 that the court shrank the definition of corruption to quid pro quo bribery. To assess the implications of that shift, it’s important to remember what Citizens United was about: not direct contributions, which remain prohibited to corporations, but independent spending. In the Buckley decision and since, the court has accorded greater First Amendment protection to independent expenditures than to direct contributions, which it has viewed as more tightly linked to the anti-corruption rationale and thus properly subject to tighter regulation. To say that only quid pro quo corruption can justify a limit on independent expenditures was not to similarly limit the rationale for regulating direct contributions, the subject of the McCutcheon case.

But in his McCutcheon opinion, Chief Justice Roberts collapsed the distinction between the two, extending Citizens United’s narrow definition of corruption to direct contributions. The government “has a strong interest,” he wrote, “in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption — quid pro quo corruption — in order to ensure that the government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them.” Justice Stephen G. Breyer’s dissenting opinion called the chief justice out on this maneuver, but in vain.

Greenhouse’s main focus in that op-ed is Roberts’ ridiculously transparent pretenses to judicial minimalism, in McCutcheon and in his opinion last year striking down the key section of the Voting Rights Act case on the fundamental constitutional principle of states’ equal sovereignty introduced in 1885 by Chief Justice Taney in Dred Scott v. Sanford, and dormant since the Civil War began in 1861 until last year. What Roberts actually is doing, as I wrote here in a series of posts, and as Greenhouse makes clear, is effectively rewriting the standard for judicial review of federal and state laws so that it’s now simply a game of sophistic, sleights-of-hand analogies and of redefinitions of common words and phrases.

Earlier this week, in what I thought would be my final post on that subject, I suggested that liberals should plan to pick up that Supreme-Court-can-now-casually-repeal-statutes-it-doesn’t-like ball and run with it, once they regain a 5-4 majority on the Court. I said that there were several statutes that I could think of offhand that would be good candidates for this, including some that actually are unconstitutional, not necessarily as written but as the current Court majority has interpreted them, and as an example I cited the Federal Arbitration Act, which as it happens, is the law at issue in another article in the New York Times today: This one. (H/T Dan Crawford.)

And aren’t some of those anti-labor-union sections of Taft-Hartley unconstitutional?

But more immediately–and deadly seriously–I see no even-remotely logical ground upon which the state statutes that remove the franchise from convicted felons can survive McCutcheon’s statement that even corruption, other than that of the direct, explicit quid pro quo variety, cannot be limited, because we must ensure that the government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them. Remember: This prohibition is in election-law statutes, not in criminal-sentencing statutes, which shouldn’t, but could, make a difference. I hope challenges to those state laws begin soon.

Greenhouse points in her op-ed to a passage in McCutcheon in which Roberts justifies the de facto overruling of a part of Buckley v. Valeo, the first post-Watergate Supreme Court opinion that addressed campaign-finance law, by saying that, well, Buckley concerned another federal statute, not McCain-Feingold, which was enacted in 2002–and since Buckley, the Court’s conservative majority has partnered aggressively with usual-suspect Conservative Legal Movement lawyers and groups to rewrite First Amendment jurisprudence as a deregulation juggernaut. Regulatory statutes that crowd doesn’t like but can’t repeal through the legislative process can be struck down as violations of the First Amendment! Call it playing the First Amendment card.

Which of course could butt up against the fundamental constitutional principle of states’ equal sovereignty. But which, in light of McCutcheon, would look like pure partisanship, concerning state election laws that deny the vote to convicted felons. Which may not matter.

As I suggested in another post this week, liberals and libertarians can play the McCutcheon First Amendment card in another respect: pushing for legislation (or an SEC rule) that would prohibit publicly-traded corporations to from making political expenditures–and, eventually, direct campaign contributions–unless the corporation first gets approval from a majority of shareholders. As I pointed out in that earlier post, a passage from McCutcheon itself seems to imply that the First Amendment right of citizens to choose who shall govern them is a right of personal choice that, Citizens United notwithstanding, cannot be co-opted derivatively without intentional delegation.

I ended that post by saying that the conservative majority’s petards can hoist only so much before shrapnel lands so visibly in unintended places that it becomes impossible to hide it. And, who knows? Maybe I’m right.

Dan Crawford emailed me this morning with a link to Linda Greenhouse’s op-ed in today’s New York Times, titled “Law and Politics,” and asked me to post about it. A more apt title for the op-ed, which a headline writer rather than Greenhouse (whose bailiwick is the Supreme Court) titled, would be “The Supreme Court and Politics,” as that is its sole subject.

The piece discusses work by eminent political scientist Robert A. Dahl, who died earlier this month at the age of 98, establishing a particular theory about the Supreme Court: that, although there is some inevitable lag time, the Supreme Court normally fairly quickly recalibrates to follow sea changes in public opinion.

Here’s how I responded to Dan’s email:

Hi, Dan. I’m a big fan of Linda Greenhouse, but I disagree with some of what she wrote. I think Dahl’s 1957 article is more out-of-date than she says. I agree more with Jack Balkin, whom she mentions, and who writes a popular law blog called Balkinization. I think that the current Court majority will remain deeply steeped in the specifics of the Reagan-era conservative legal movement, which involves some really weird doctrines that they claim as constitutional ones, some of which the public is clueless about and that therefore these justices pay no price in public opinion for. I’ve alluded to this on AB from time to time, but have wanted for a while to write in more depth about it.

There’s one really big “sleeper” case, especially, that was argued at the Court recently and that I mentioned, but that I want to write in more depth about. I do think that if the majority rules the way they clearly want to in that case, there will be more publicity about it than they expect, and more backlash. Not as much as with Citizens United or even as much as with the Voting Rights Act case last year, but they expect almost none and I think they’ll be surprised that they’re wrong about that.

But the bottom line is that I don’t think this crowd cares that much about public opinion. They’d prefer, of course, that no one notice what they’re doing, but I doubt that fear of public backlash will stop what amounts to a Reagan-era legislative agenda that these people clearly are hell-bent on forcing into law, much of it inoculated against reversal by Congress (a la the Ledbetter case, which Greenhouse mentions) by claiming some constitutional ground for the ruling. Ledbetter and many of their other pro-business and pro-state-and-local-government procedural/jurisdictional-rules Supreme Court opinions–interpretations-cum-rewritings of procedural or substantive statutes, some overtly fabricated by the Court in pretty clear violation of the Constitution’s Articles I and II (separation of powers)–can eventually be reversed by a Congress not in thrall to the Koch brothers. (Congress reversed Ledbetter before Citizens United.) But when the Court couches its rulings as constitutional dictate, Congress can’t reverse them.

But there are some aspects that are peculiar to this particular majority, and that has received very little attention. Always in the past (at least to my knowledge), the Court limited itself in major, sweeping rulings to issues raised by the parties. This was true, certainly, in the New Deal rulings first striking down New Deal legislation and then reversing itself and upholding most of the legislation. It also was true in every aspect of the Warren Court era–racial issues, First Amendment issues, criminal defendants’ rights, etc.–and then in the Burger Court era (e.g., Roe v. Wade). And those cases always were brought not by some manufactured-issue ideologues, as occurs regularly now, but instead by normal-circumstance “cases and controversies,” as the constitutional phrase goes.

What is happening now is an orchestrated dance between rightwing conservative-movement lawyers and groups, and the Reagan, Bush I and Bush II justices, in which some really bizarre constitutional and statutory-interpretation arguments are made, and then adopted by the Court, dramatically but very often quietly rewriting parts of the Constitution (e.g., the Supremacy Clause, flipping it upside-down when applied to state judicial branches but flipping it back to serve conservative-movement dogma in other contexts) and procedural and substantive statutes. In fact, a hallmark of this crowd is the casual flipping back-and-forth as convenient–a hallmark especially of Scalia and Alito.

Beverly

The “sleeper” case I referenced is Harris v. Quinn, which was argued to the Court on Jan. 21. At first blush a labor-law matter under the National Labor Relations Act (a.k.a., “Taft-Hartley”), but apparently a majority of the Court plans to turn it into a First Amendment case. At oral argument, Samuel Alito claimed that public-employee unions, by their very existence, violate the First Amendment speech and assembly rights of workers who don’t belong to the union, and Anthony Kennedy suggested that the longtime labor-law rule known as a “fair share” provision in public-employee union contracts, allowed by Taft-Hartley and previous Supreme Court opinions, violates the First Amendment’s “petition” clause (right to petition the government for a redress of grievances). Something about some anti-union public employees who are concerned about “the size of government” and who therefore want to be fired or have their wages and pensions reduced.

An op-ed in the Washington Post by labor and employment lawyer Moshe Marvit, published the day before the argument in the case, summarizes the background:

On Tuesday the Supreme Court will hear arguments in Harris v. Quinn, a case that has been referred to as a “sleeper” by both conservatives and liberals and may turn out to be the most significant labor law case in decades. It was brought by the National Right to Work Legal Defense Foundation (NRTW), whose mission is to use “strategic litigation” to “eliminate coercive union power and compulsory unionism abuses,”in this case on behalf of several personal assistants who provide in-home services to persons with disabilities under Illinois’s Medicaid program.

NRTW argues that these home-care workers are not public employees and therefore should not have the right to exclusive representation by a union, nor should they have to pay either membership dues or a “fair share” fee for the union they have chosen to represent them. (“Exclusive representation” means that all workers are covered by a union so long as the majority have voted for it. A “fair share” provision requires workers who are not union members to pay a proportionate share of the costs incurred by the union to support the workforce in the collective bargaining process. Unions are not allowed to use “fair share” fees on any political activities.)

But that was then. Then, being before the oral argument. Now, it’s a First Amendment case concerning forced speech about the role of government, and the right of public employees to petition their government employer for a redress of the grievance of big government. Public employees who are concerned about the size of government should be entitled to resign, or forego a pay or pension increase and demand a larger employee contribution for healthcare insurance.

Or at least they should be allowed to accept those benefits without contributing to the union’s expenses to obtain them for the workers.

This is as opposed to, say, shareholders–some of them via their pension funds, some of them through mutual funds, and almost all of them entirely unwittingly–who care every bit as much about the size of government as do those anti-union public employees. And who the Supreme Court has said must be forced to support the political views of the CEOs who use corporate funds to secretly contribute to Republican PACs. Especially views about the size of government. Each corporation is a person–specifically, the person who is its CEO. At least if the CEO is a Republican.

States, too, it now turns out, also are people, entitled to Fourteenth Amendment equal protection of the law, a constitutional provision heretofore accorded to individuals as against a state’s denial of equal protection of the law. Who knew? Well, whatever.

No, Harris was not about the First Amendment until the Republican justices decided (apparently) that it will be. As the articles about this case that I’ve linked to above show, this is in contrast to a case called Garcetti v. Ceballosin early 2006. Wikipedia explains:

Garcetti v. Ceballos, 547 U.S. 410 (2006), is a decision by the Supreme Court of the United States involving the First Amendmentfree speech protections for government employees. The plaintiff in the case was a district attorney who claimed that he had been passed up for a promotion for criticizing the legitimacy of a warrant. The Court ruled, in a 5-4 decision, that because his statements were made pursuant to his position as a public employee, rather than as a private citizen, his speech had no First Amendment protection.

The case was by no means incidentally Samuel Alito’s, um, very first case as a Supreme Court justice. He insisted. Again, Wikipedia explains:

The Supreme Court reversed the Ninth Circuit, ruling in a 5-4 decision delivered by JusticeAnthony Kennedy that the First Amendment does not prevent employees from being disciplined for expressions they make pursuant to their professional duties. The case had been reargued following the retirement of Justice Sandra Day O’Connor, as the decision was tied without her; her successor, Justice Samuel Alito, then broke the tie.

The four dissenting justices, in three dissents written by Justices John Paul Stevens, David Souter, and Stephen Breyer, took issue with the majority’s firm line against the First Amendment ever applying to speech made within the scope of public employment, arguing instead that the government’s stronger interest in this context could be accommodated by the ordinary balancing test.

Actually, what happened is that the original 5-4 opinion was issued just before the Senate voted to confirm Alito as O’connor’s replace. Technically, the opinion had not yet become final when Altio was sworn in, because the short time allotted the losing party to file a petition for reconsideration had not expired. The Court had not granted a petition for reconsideration in the preceding four decades or so. But Alito supplied the fifth vote to rehear the case in order to reverse the result.

Kennedy wrote the opinion for the new majority. Wikipedia summarizes it:

The Court wrote that its “precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.” Instead, public employees are not speaking as citizens when they are speaking to fulfill a responsibility of their job.

Unless, of course, the job responsibility at issue is compliance with a labor agreement negotiated between a union and the employer. Or if the statement at issue concerns something as unimportant as the legitimacy of a warrant rather than the all-important matter of the size of government.

Also in today’s New York Times, along with Greenhouse’s op-ed, is an article by Adam Liptak, the Times’ current Supreme Court correspondent, about a case to be argued at the Court on Monday that, as Liptak notes albeit obliquely, promises to illustrate one of the hallmarks of this Court. A Court majority that itself routinely, casually rewrites procedural and substantive statutes and allows the lower federal courts to do the same, for decades, until ExxonMobil or Sprint petitions the Supreme Court about it, takes umbrage when it is the executive branch rather than the judicial branch that encroaches upon the Congress’s constitutional prerogatives. But only when the executive branch is headed by a Democrat.

A Court that has so brazenly and aggressively precluded access to federal court, and most certainly to itself, as a mechanism to petition the government for a redress of grievances–effectuating a key goal of the conservative movement from which these five justices all hail–is about to concern itself with the right of public employees to petition for small government by refusing to pay for their union representation.

If there is no mystery about the nature of the chief justice’s views, I remain baffled by their origin. Clearly, he doesn’t trust Congress; in describing conservative judges, that’s like observing that the sun rises in the east. But oddly for someone who earned his early stripes in the Justice Department and White House Counsel’s Office, he doesn’t like the executive branch any better.

He made this clear in an opinion dissenting from a 6-to-3 decision this term in an administrative law case, City of Arlington v. Federal Communications Commission. The question was whether, when the underlying statute is ambiguous, courts should defer to an administrative agency’s interpretation of its own jurisdiction. The answer was clearly yes, according to Justice Scalia’s majority opinion that built on decades of precedent on judicial deference to agencies. The chief justice’s dissenting opinion was a discordant screed that bemoaned the modern administrative state with its “hundreds of federal agencies poking into every nook and cranny of daily life.”

Congress can’t be trusted. The executive branch is out of control. What’s left?

The Supreme Court. There’s a comforting thought as we await Year 9 of the Roberts court.

Yes, the chief justice’s dissenting opinion was a discordant screed that bemoaned the modern administrative state with its “hundreds of federal agencies poking into every nook and cranny of daily life.” That is, I guess, as opposed to, say, state laws (and in the case of DOMA, a federal statute) that poke into what should be very private nooks and crannies of daily life, in which case their poking into nooks and crannies of daily life are fine with Roberts.

But more important, but, as I said earlier today and also last week, almost completely ignored by the mainstream media in its coverage of the Supreme Court—and therefore completely unknown to almost everyone—is the current Supreme Court’s bizarre claim that state courts are entitled to unbridled sovereign dignity to poke into every nook and cranny of daily lives. Or to delegate breathtaking effectively-judicial powers to private persons to control every nook and cranny of the daily lives of, say, those unlucky enough to suddenly be subject to, say, family-law court, or probate court, or criminal courts. State courts that routinely ignore even their own state’s legislative dictates intended to ensure compliance with procedural and substantive federal constitutional mandates whose unequivocal purpose is to place individual dignity above what these fair-weather “federalism” jurists claim is the constitutional right to sovereign dignity that state courts have and that grants them the constitutional right to violate individual dignity in even the most profound and basic respects.

As I said in a post here last week, maybe one day Justice Kennedy—who, unlike Roberts, does recognize federal constitutional limits to state legislative– and executive-branch powers even concerning matters that aren’t Republican rallying cries—will deign to explain why he and his cohorts believe that the Constitution, which since the late 1860s has included the Fourteenth and Fifteenth amendments and which still includes both the habeas corpus clause and Supremacy clause, renders state courts sovereigns and therefore untouchable by “collateral” declaratory federal-court order.

And maybe that distinguishes Kennedy from Roberts. Maybe Kennedy one day will give some thought to it. Roberts by contrast will merrily continue his personal legislative agenda, for which no thought is necessary or evident.

Leaving race aside for the moment (did someone mention that the Voting Rights Act has something to do with empowering black voters – who just might, for some strange reason, prefer Democrats?), what the court’s conservatives seem to see in Section 5 is a threat to state sovereignty — the “sovereign dignity” of the states, a phrase Justice Anthony M. Kennedy has used in another federalism context. This theme ran throughout the argument. Justice Scalia referred to Section 5 as imposing “these extraordinary procedures that deny the states sovereign powers which the Constitution preserves to them.” Justice Kennedy asked whether “if Alabama wants to acknowledge the wrongs of its past, is it better off doing that if it’s an independent sovereign or if it’s under the trusteeship of the United States government?”

— A Big New Power, Linda Greenhouse, The New York Times, today, discussing the Feb. 26 argument at the Supreme Court in a case challenging the continuing constitutionality of the Voting Rights Act

Just so you know, the main Reconstruction Amendment at issue in Shelby County, Ala. v. Holder, the Voting Rights Act case–the 15th Amendment–provides in full:

Section. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section. 2. The Congress shall have power to enforce this article by appropriate legislation.

That language in Section 2, giving Congress the “power to enforce this article by appropriate legislation,” is standard Constitutional Amendment language. It appears also in the other Reconstruction Amendment at issue in Shelby County–the 14th Amendment–a five-section amendment, the two relevant ones which read:

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Section 1, but not Section 5, also, as it happens, is at issue in the other culture-wars blockbuster Supreme Court case this term, Fisher v. The University of Texas, a.k.a., the big affirmative-action-in-state-university-admissions-policy case.

John Roberts will write the 5-4 opinions in both cases. In Fisher, he and Kennedy will agree that the Union won the Civil War, and that the three Reconstruction Amendments–the third one, the 13th Amendment, actually being the first of the three; it abolished slavery–did not, after all, flip the Supremacy Clause in Article VI, Clause 2. It said (and the 5-4 Court majority will confirm in Fisher) still says:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

But Fisher was argued early in the Court’s term, in October, and probably will be decided before Shelby County. So Roberts & Kennedy & Co. will be able to clarify very quickly that–as Kennedy, Thomas and the others routinely and unselfconsciously, and without explanation–say, states are sovereigns. Not that states have some but not all the attributes of sovereigns; no, that states are sovereigns. And so, the Supremacy Clause notwithstanding, states need not comply with federal constitutional or statutory law. Except, of course, on issues important to 1980s-90s Republican White House, Justice Department and judicial appointees.

These folks have a list, and they are checking off each item on it, even when that means that in the very same Court term they’ll casually flip the Supremacy Clause back and forth. As it will this term. Christmas will come in May and June this year. Or at least Santa Claus will.

Federal trusteeships of states are, it will become clear by the end of this Court term, constitutional only when the trusteeship is of a state, such as Texas, whose legislature enacts a statute that butts up against a 1980s-’90s-era rightwing cause célèbre–a bullet point on the list. Federal trusteeships of states are clearly unconstitutional, however, when the trusteeship is explicitly authorized in the Constitution itself, as it is in Section 2 of the 15th Amendment, but the explicit authorization is itself on the list. That’s because, then, it turns out, that despite appearances–i.e., the language in the Amendment itself–the purpose of the 15th Amendment was not to make the states’ racial-minority citizens better off vis-à-vis the states, but apparently, as matter of historical fact, the opposite.

Who knew? Other than the Republican far-right, that is?

Not me, and probably not you. You probably learned, incorrectly, back in U.S. History class that the Reconstruction Amendments were added after the Civil War in order to make the states’ racial minorities better off vis-à-vis the states. But, then again, you also probably learned that the Confederacy lost the Civil War. Even those of you who went to upscale suburban schools or to fancy private ones. Well, those of you who took that class pre-1980s, anyway. But we’ll soon be disabused of that misconception, in a high-profile Supreme Court 5-4 opinion that will be simply the denouement of a decades-long juggernaut by a bizarre cadre of legal wingnuts who have gained a stranglehold on the American judicial system to deny that the Confederacy did not win the Civil War.

Sort of like the Tea Party congressional delegation’s decision to deny the result of last November’s election, but with no near-term reversal possible in 2014. Only an unexpected vacancy on the Court will do that.

Meanwhile, if Alabama wants to acknowledge the wrongs of its past, it will be better off doing that if it’s an independent sovereign rather than if it’s under the trusteeship of the United States government. Which is good, since Alabama surely will want to acknowledge the wrongs of its past. (Assuming, of course, that constitutional wrongs were committed in the past, which in this case presumes facts not in evidence at the Supreme Court on the day of the argument in Shelby County. Including the fact that that Section 1 of the 15th Amendment eliminated the concept that the right to vote is a racial entitlement.) I suggest a statue. And as an independent sovereign, which “it”–the intended beneficiary of the 15th Amendment–is better off as, Alabama might decide to erect one.

But these extraordinary procedures that deny the states sovereign powers which the Constitution preserves to them apply only to extraordinary procedures enacted by Congress. They do not apply to extraordinary procedures in the Supreme Court. Such as the one in which the Reconstruction Amendments are rewritten, right along with Civil War and Reconstruction-era history.

I do have a suggestion for Texas, though, just as I have one for Alabama, since, when Texas, like Alabama, wants to acknowledge the wrongs of its past, it will be better off doing that if it’s an independent sovereign rather than if it’s under the trusteeship of the United States government.

Again here, I suggest a statue–this one honoring all the white Texas high school seniors who narrowly missed the cut to gain admission to their state’s flagship university since the current state statute and its predecessor statute were enacted.

The second biggest surprise of the day, after the survival of the Affordable Care Act, is that we’ve never really gotten over our collective crush on John Roberts. How else to explain today’s outpouring of praise, not merely for the decision but for the man himself, for his statesmanship and judicial modesty? All these years, it now appears, we’ve held it in our hearts; we’ve written it in our diaries, remembering every one of those sweet nothings he once whispered about “common ground” and “humility.” No, we never really gave up on Roberts. Not during that long judicial bender he took with the boys—Nino, Clarence, Tony, and Sam; not during the Citizens United argument, when he called the government “big brother”; not when he swept away a century’s worth of campaign finance regulations. So complete is our swoon, in the afterglow of the ACA ruling, that Bob Shrum has written that if Roberts had been Chief Justice in 2000, Bush v. Gore might have gone the other way.

I write on legal and political issue issues for a left-of-center blog and have indicated there that I detest and really fear John Roberts because of his deeply diabolical nature and his checklist of ‘80s-era Federalist Society things-to-do. Linda Greenhouse has written several columns, two or three of them within the last few months, highlighting those two quintessential John Roberts traits. But Greenhouse, and I, predicted that Roberts would save the ACA because the case is so high-profile and the grounds for striking down the statute so utterly artificial that it would place more public scrutiny on the types of things he and his cadre normally get away with with virtually no public awareness. I don’t think he did what he did out of a sense of statesmanship, nor in order to gut the Commerce Clause; I think the Commerce Clause ruling will have almost no practical effect, and he could have done the same thing with it simply by joining the other four conservatives in a 5-4 ruling striking down the ACA.

I think he’s, in a way, the mirror image of Elena Kagan, who in high-profile cases usually votes liberal but who, best as I can tell, almost never goes out on a limb for the “nobody” “cert” petitioner and actually fights to get a “cert grant,” as Sotomayor does, and who I’d bet doesn’t even vote very often to hear such cases. Her priorities seem to be her own public image and being buddies with the “in” crowd on the Court, whereas Roberts’ priority is making as many dramatic changes to the law as he can, but doing so as much under the public’s radar as possible. (I also think Kagan is a bit naïve on some issues because of her unfamiliarity with them—see, e.g.: federal habeas review of state-court convictions—and fairly easily snowed.)

So I agree with Ken Houghton in his post below that John Roberts is not the friend of progressives. I disagree with Ken, though, that Roberts has set up some trap through which he will later orchestrate the striking down of the ACA as a violation of equal protection because of the way in which the Medicaid expansion is administered (if I understand Ken correctly) is nil. Roberts ended his opinion with a statement saying that the proper manner in which to determine the ultimate fate of the ACA is through the political process, not the judicial process—and I think he means it. There are two parts of Roberts’ opinion—the part concerning Congress’s regulatory powers under the Commerce Clause and the part concerning Congress’s power to enact federal-state partnership legislation a la Medicaid—that raise serious concerns about the impact on otherlegislation. I wrote separate posts yesterday about each of these, and I’ll be writing another one on Medicaid issue later today.

But any lawsuits concerning some aspect of how the law is working in practice, once it gets underway, would result in the possible tweaking of an HHS regulation or in the manner in which a particular state is implementing the Act, but I just don’t foresee a successful attack on the constitutionality of some provision in the Act itself.

Btw, the Supreme Court has been amazingly slow this term in issuing opinions in high-profile cases. Most of the opinions they’ve issued recently are on pretty esoteric issues; they’re important, but pretty inside-baseball. A good example is an opinion they issued yesterday. Here’s a great article on it at SCOTUSblog…. If you read it, I think you’ll see what I mean by esoteric and inside-baseball. I do have to say—as the author of the article does—that Alito’s dissent is spot-on. And, as the author says, it’s downright baffling that five justices signed on to Thomas’s wacky opinion. The article indicates that Thomas apparently flipped Scalia after the oral argument. Scalia had it right the first time.

In an op-ed piece yesterday in the New York Times, Linda Greenhouse, that paper’s longtime Supreme Court correspondent, who retired three or four years ago but still writes two or three op-ed commentaries a month there, mentioned the Court’s slow pace in issuing its “big” opinions this term. Then she discusses an opinion that the Court issued on June 4 that, like most Supreme Court opinions, got little attention in the mainstream press but is nonetheless important.

Most Supreme Court opinions decide “procedural,” “jurisdictional” or “standard-of-judicial-review” questions, which sometimes involve constitutional questions, often under the guise of statutory-interpretation ones. Often, the court treats these cases as though they present only issues of interpretation of a federal statute and pretend that the case does not implicate constitutional law even if really does. But the case Greenhouse discussed, Amour v. City of Indianapolis, was squarely a constitutional-law case involving the Fourteen Amendment’s equal protection clause, and did not involve a federal statute but instead a Supreme Court-created standard of judicial review of the constitutionality of a government policy or law that has the effect of discriminating against some class of people.

Under the Court’s longtime equal-protection jurisprudence, the law is more tolerant of certain types of government discrimination than of other types of discrimination. Laws or policies whose purpose is purely fiscal are among the types of government actions entitled to the most tolerant, or most “deferential,” level of judicial “scrutiny.” Courts are not entitled to bar those laws or policies as violative of the equal protection clause unless there is no conceivable legally legitimate “rational basis” for the discrimination. Greenhouse observes (as most liberal court watchers have recognized) that the conservative justices select out a few favorite conservative causes—most notably, the cause of George W. Bush becoming president instead of Al Gore, but also challenges to government affirmative action programs, and issues concerning religious speech in public schools (which Greenhouse doesn’t mention), and property-rights and tax cases—in which to champion the right of equal protection, while otherwise normally accepting virtually any stated basis for government discrimination as a sufficiently rational one to pass constitutional muster. Of these conservative-favored types of cases, the deferential “rational basis”—i.e., almost anything goes—standard is applied only to the property and tax-type cases. Conservative legal-movement types hatethat it is.

The city gave the 180 property owners affected a choice of how to pay the $9,278 assessment: in a lump sum, or over time with interest. Most chose to pay over 10, 20 or 30 years. Three dozen paid up front, and the city then played them for suckers, announcing a year later that it was changing the way it financed sewer improvements and would issue bonds to cover most of the cost. It would forgive the indebtedness of the installment-payers. But the city refused to give the full-payers any of the refund they demanded.

The full-payers sued for a refund of all but the first year’s pro-rated assessment. In a 6-3 opinion written by Breyer, the majority accepted as a sufficiently legitimate rational basis the city’s claim that the refund process would be difficult administratively and that the city then also would probably have to make similar refunds in other parts of the city. Roberts wrote a strong dissent, but, as Greenhouse points out, it was fact-based rather than an attempt to change the law itself. Roberts, joined by Scalia and Alito, said that the city’s proffered basis was not sufficiently legitimate under the rational-basis to pass equal protection muster. But he did not advocate a change in equal protection legal doctrine itself; he did not suggest that the Court should abandon the rational-basis test for property-rights and other fiscal cases. And Kennedy joined Breyer’s majority opinion.

Which Greenhouse interprets as potentially indicative of the outcome of the Affordable Care Act case. I do too, although I’d already concluded more than two months ago that Roberts and Kennedy probably would vote to uphold the individual-mandate provision. I based that in part on an earlier Greenhouse op-ed in the Times, in which she discussed a comment by Kennedy late in the oral argument on the challenge to the individual mandate, and a comment by Roberts. Neither comment had gotten much attention in the press coverage immediately following the argument (and I hadn’t read the lengthy transcript of the argument). I also concluded once the dust had settled two or three weeks after the argument, and I’d read many articles and commentaries about it, that the majority might tacitly and effectively uphold the mandate’s constitutionality, by not formally making that ruling at this time but making it clear that eventually they will. I still think that’s a possibility, but one that, because of recent historical findings by a Harvard professor published a few weeks after the argument, is less likely now.

In several posts on AB beginning about a year ago, I argued that the challengers’ Commerce Clause argument—that in enacting the ACA, Congress’ exceed its power under the Commerce Clause—was really a disguised Fifth Amendment “substantive due process” argument (liberty! freedom!), not a Commerce Clause argument at all. Under the Supreme Court’s Commerce Clause jurisprudence, beginning in the mid-1930s with cases challenging the constitutionality of some of the New Deal legislation, and including a high-profile opinion issued in 2005, the ACA appears comfortably within the authority of Congress’s Commerce power. It was that darned liberty thing that really was at issue: the slippery slope to Congress’s requiring the purchase of broccoli. That is, this is a Fifth Amendment substantive due process argument, not a Commerce Clause argument. As I pointed out, the “freedom” issue would be the same whether Congress achieved the end through it Commerce power or instead through its taxing power.

And, in fact, the ACA’s enforcement mechanism—the penalty for not obtaining medical insurance arguably is a tax. And since that’s the only enforcement mechanism—there is no provision for arrest and imprisonment, for example—the taxing power would suffice. But that still would leave the issue of freedom! liberty! And that slippery slope to broccoli-purchase mandates. Unless, of course, the ACA mandate is no different, in a liberty! freedom! sense, whether enacted through the Commerce power or instead through the taxing power, than, say, Medicare and Social Security, but that a broccoli mandate, whether enacted through the Commerce power or instead through the taxing power is very different, and would be a violation of Fifth Amendment substantive due process (personal choice, liberty).

Shortly after I wrote my first AB post making this argument, the first of two appellate-court opinions upholding the law under a virtually identical analysis was issued, both of them written by conservative-movement leading lights. In the second of the two, issued last August, another leading-light movement-conservative judge dissented, but only from the determination that the law was within Congress’s Commerce Clause power, not from the conclusion that the law unconstitutionality infringed upon individual liberty. That judge said that had Congress tweaked the statute even just slightly, enacting through the taxing power rather than through the commerce-regulating power, running the mandated insurance purchase through the government, the statute would be constitutional, both in that Congress would have the authority to enact it and that the mandate would not violate constitutional precepts of individual liberty. And it turns out that the lawyer for the statute’s challengers agrees, as (apparently) does either Kennedy or Roberts (I can’t remember which). And probably both do.

It was a third appellate case that the Supreme Court agreed to hear. In that case, the Obama administration originally argued that the ACA’s penalty provisions was a tax, that the ACA was enacted under both the Commerce power and the taxing power—and that under a federal “jurisdictional” statute known as the Tax Anti-Injunction Act, which bars the courts from hearing a constitutional challenge to a federal taxing statute until after the tax is due, the courts lacked “jurisdiction” (legal authority) to consider the constitutional challenge at all until April 2015, when the first penalties under the ACA would be due. But when that case on appeal, the administration reversed its position and said the penalty was, well, just a penalty, not a tax, and that the ACA was enacted solely under Congress’s Commerce power. If so, the courts could hear the challenges to the Act. That appellate court agreed, and in a split opinion held the mandate provision unconstitutional under what the majority said was a finding that Congress exceeded its Commerce power authority but what, the language of the opinion made clear, was really a finding that the mandate violated Fifth Amendment due process, or individual liberty, rights. This, although the opinion didn’t mention the Fifth Amendment or due process.

When the Supreme Court agreed to hear that case, it decided to hear as a threshold issue, although neither side had asked it to do so, whether the penalty is really a tax and therefore its constitutionality cannot be decided until 2015. That issue was argued on the first of the three days of argument. The next day, late in the argument on the mandate issue, Kennedy or Roberts asked the lawyer for the challengers whether an insurance mandate enacted under Congress’s taxing power would be constitutional—that is, whether Congress not only had the authority to enact such a mandate through the taxing power but also whether such a mandate would be constitutional; in other words, whether it wouldn’t violate a due process liberty right and lead to the possible forced purchase of broccoli. The lawyer said Congress could enact such a mandate through its taxing power, and apparently the justices didn’t dispute this.

So if a majority of the Court concludes that the mandate penalty is a tax, they can postpone an actual ruling on its constitutionality until after April 2015, while strongly suggesting in its opinion this month that the mandate and its enforcement-mechanism penalty do not unconstitutionally violate individual liberty.

But I don’t think they’ll do that. In an article titled “IfHealth Insurance Mandates Are Unconstitutional, Why Did the Founding FathersBack Them?”, published in the New Republic in mid-April (three weeks after the Supreme Court arguments), Harvard law professor Einer Elhauge pointed out that on two occasions in this country’s earliest days, Congress, whose members the included several drafters of the Constitution, enacted statutes mandating that certain citizens purchase a private product. In one instance the product was guns, in the service of a creating a citizens’ militia. In the other instance, the product was medical insurance, which ship owners were required to buy for their seamen, enacted apparently under Congress’s Commerce power. Neither law was thought to violate constitutional concepts of individual liberty.

Which creates sort of an obstacle for the conservative “originalist” justices. And which causes me to think that a majority will uphold the mandate as authorized under the Commerce power and that the penalty is, after all, not a tax but instead just a penalty.

Which in turn causes me to disclaim my prediction before I’m even proven wrong. After all, this type of prediction is worth the cost of the paper it’s not even written on. If that.